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In the recent Court of Appeals case, State v. Mason, the trial court erred by sending exhibits to the jury deliberation room over defense counsel’s objection. Although the State got lucky in that the error turned out not to be prejudicial, the decision signals that it’s a good time for a review of the relevant law. G.S. 15A-1233 sets out the procedure for dealing with the jury’s request to review testimony or evidence. Here’s how it’s supposed to work:

Jury Must Be Brought to Courtroom. If a deliberating jury requests a review of testimony or other evidence, the jurors must be conducted to the courtroom. G.S. 15A-1233(a). Both the jury’s request and the judge’s response must be made in open court.State v. Ashe, 314 N.C. 28, 32-36, 40 (1985); see also State v. McLaughlin, 320 N.C. 564, 568-70 (1987); State v. Nelson, 341 N.C. 695, 700 (1995).

Notice to Parties. The judge must notify the prosecution and the defendant of the jury’s request. G.S. 15A-1233(a). It is best practice for the trial judge to hear from both sides before responding to the request.

Exercise of Discretion. The judge must exercise his or her discretion when responding to the jury’s request. G.S. 15A-1233(a); Ashe, 314 N.C. at 35, 40. Examples of factors that the trial court might consider in the exercise of its discretion include:

a concern that the jury might give too much emphasis to the evidence that is reviewed and not properly consider the totality of the evidence, State v. McVay, 174 N.C. App. 335, 340-41 (2005), and

the time, practicality, and difficulty involved with granting the request, State v. Perez, 135 N.C. App. 543, 555 (1999).

After exercising his or her discretion in connection with the jury’s request, the judge should expressly state on the record that he or she is granting or denying the request in his or her discretion. However, no further explanation is required. State v. Stevenson, __ N.C. App. __, 710 S.E.2d 304, 308 (2011).

Covered Evidence. The statute only applies to evidence that has been admitted at trial, G.S. 15A-1233(a); the trial court does not have authority to allow the jury to review exhibits that have not been admitted into evidence. State v. Cannon, 341 N.C. 79, 84-85 (1995).

Judge’s Response. If the judge decides to deny the jury’s request, the judge should so inform the jury. No specific language is required to do this but the judge should make clear that he or she exercised discretion when making the decision and that the jury should consider all of the evidence. State v. Weddington, 329 N.C. 202, 207-08 (1991). When the judge denies a request to review testimony stating only that a transcript is not available or cannot be produced, cases have held that the record failed to demonstrate an exercise of discretion. See, e.g., Ashe, 314 N.C. at 35. The N.C. Supreme Court has noted that “[t]he existence of a transcript is, of course, not a prerequisite to permitting review of testimony” and that “[t]he usual method of reviewing testimony before a transcript has been prepared is to let the court reporter read to the jury his or her notes under the supervision of the trial court and in the presence of all parties.” Id. at 35, n.6.

If the trial judge decides to allow the jury to review the testimony or evidence, the judge may direct that requested parts of the testimony be read to the jury and permit the jury to re-examine in open court the requested evidence. G.S. 15A-1233(a). Unlike a review in the jury room, the judge may allow a review in open court regardless of whether the parties consent. State v. Lee, 128 N.C. App. 506, 509 (1998).

Upon request by the jury and with consent of all parties, the judge may in his or her discretion allow the jury to take to the jury room exhibits and writings which have been received in evidence. G.S. 15A-1233(b). It is error to allow review in the jury room absent consent of all parties. Cannon, 341 N.C. at 83.

Regardless of whether the review is in open court or in the jury room, the judge may, in his or her discretion, allow the jury to review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested. G.S. 15A-1233(a) & (b).

When ruling on the jury’s request, the trial court must instruct the jury that it must remember and consider the rest of the evidence. Weddington, 329 N.C. at 208 (providing an example of how the instruction should be worded).

If the judge permits an exhibit to be taken to the jury room, the judge must, upon request, instruct the jury not to conduct any experiments with the exhibit. G.S. 15A-1233(b). It also makes sense to instruct the jury not to alter or change the exhibits in any way.

A fatal defect in an indictment occurs when the indictment fails to allege an essential element of the crime charged. A fatal variance, by contrast, occurs when the facts brought out at trial don’t match up with those alleged in the indictment, and this difference occurs as to an essential element. Here are two illustrative examples.

Example 1: A larceny indictment alleges that the defendant “unlawfully, willfully, and feloniously did steal, take, and carry away a 14K gold wedding band, personal property, such property having a value of $1,075.”

In this example the larceny indictment is fatally defective because it fails to allege an essential element: The name of the person in lawful possession of the property. It doesn’t matter what the evidence at trial shows because the indictment can’t stand on its own two feet.

Example 2: A larceny indictment alleges that the defendant “unlawfully, willfully, and feloniously did steal, take, and carry away a 14K gold wedding band, the personal property of Jessica Smith, such property having a value of $1,075.” At trial the evidence shows that the wedding band was in fact the property of and in the possession of Joan Melville.

In this example, the indictment names the wrong person as having possession of the property. For this offense, that’s a fatal variance. Note that in this case the indictment is okay on its face (it doesn’t suffer from a fatal defect). The problem is that the evidence doesn’t match the allegation as to an essential element and thus there is a fatal variance.

Aside from application, there is another important distinction between these concepts. Specifically, fatal defect is jurisdictional and fatal variance is not. Because fatal defect is jurisdictional, it can be raised at any time—before trial, after trial, or any time after conviction, even when the sentence has been fully served. Fatal variance on the other hand is not jurisdictional. That means that if it’s not raised at trial, it’s waived. There are many cases on point, including a recent one from the court of appeals. In State v. Mason, __ N.C. App. __, __ S.E.2d __ (Aug. 7, 2012), the defendant was convicted of armed robbery. He asserted on appeal that there was a fatal variance between the indictment and the evidence with respect to the victim’s name. The court concluded that by failing to assert fatal variance in a motion to dismiss, the defendant failed to preserve the issue for appellate review.

What’s the take away for litigants? First, check the indictment before trial. This will help you identify fatal defects. For prosecutors, if you keep the charging language in mind as you prepare the case, it will also help you avoid a fatal variance. Second, for the defense, check the indictment after the State rests. If there’s a fatal variance, be sure to make a motion to dismiss on that basis, because, as the title of this post indicates, use it or lose it is the rule.